The Legal Foundation for our iHemp Industry

This article explains iHemp’s relationship with the UN Single Convention 1961 and includes comments on the European Union rules. It is based on a Council of the European Union non-paper.

The regulatory system in Aotearoa/New Zealand (and most other countries) is based on the UN Single Convention 1961, and the amendments in the Convention on Psychotropic Substances 1971 & the Convention of Psychotropic Substances of 1988.

This is quite involved as it covers recreational, medicinal, and industrial use of the hemp plant. But concentrating on iHemp shows the pathway for our iHemp industry.

Extracted from our IHemp regulations 2006:

"The object of these regulations is to enable the cultivation and distribution of industrial hemp under a licensing regime that ensures that other forms of cannabis are not cultivated and distributed under the guise of industrial hemp".

A hemp product means a product of a kind that is derived, in whole or in part, from industrial hemp; and (Ed. should be or) a hemp seed food product.

Industrial hemp means hemp in the form of – (a) plants with a THC content that is—(i) generally below 0.35%; and (ii) is not above 0.5%; or (b) seeds harvested from plants of that kind.

Section 67 – Permission – every person is permitted to possess, use, and trade in (including export) – hemp products, hulled hemp seeds; and stalks of industrial hemp, as long as those stalks are without leaves or fruit.

This means, Ministry of Health (MOH, who administer the Misuse of Drugs Act – MoDA) issue “licences” under the iHemp regulations to grow low THC industrial hemp and only industrial hemp can be made into hemp products available for sale.

The industries interpretation of the regulations is that they were created to remove us from being a controlled drug, to allow an “enabled” industry to develop, without the extra controls required for high THC cannabis products.

Disappointingly the MOH continues to treat us like a controlled drug. 

Current situation

In Aotearoa/New Zealand – hemp seed is legal as a hemp food product, fibre (with no leaves) is automatically a “hemp product”.

Currently, MPI’s position is that animal use is entirely prohibited in Aotearoa/New Zealand for both production and companion animals – this covers iHemp in any form.

We do not currently have industrial access to the leaves and flowering and fruiting tops, which contain naturally occurring levels of THC (controlled drug) and CBD (Prescription Medicine)

In time the Governments position will need to evolve, a framework is needed that allows access to the high value export and domestic markets for health and wellness products. Including Animal feed, additives and veterinary medicines.  These markets have the potential to quickly provide cashflow and speed up the success of our emerging seed and fiber industries.

How we got here

MoDA covers cannabis, and our iHemp regulations reflect the acknowledgment by The UN single Convention, that low THC industrial Hemp (iHemp) has industrial uses, distinct from the high THC medicinal and recreational uses.

Pursuant to "Article 1(1)(b) of the Convention, “Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated”. Cannabis plant is defined in Article 1(1)(c) as any plant of the genus Cannabis."

This is our first indication that iHemp should not be treated as higher THC cannabis -drug, which is included in Schedule I of the Single Convention on Narcotic Drugs which includes an entry concerning “Cannabis and cannabis resin and extracts and tinctures of cannabis”. “Cannabis and cannabis resin” which are clearly different to industrial use of seed, fibre and leaves from low THC industrial hemp.

What does this mean and how can we use cannabis

The Single Convention on Narcotic Drugs limits the "cultivation of the cannabis plant for the production, its manufacture, export, import, distribution of, trade in, and the use of cannabis or cannabis resin exclusively to medical and scientific purposes. This limitation covers the plant in its entirety, the flowering and fruiting tops and the seeds and leaves of the cannabis plant, when accompanied by the tops".

In accordance with its Article 28(2), the Single Convention on Narcotic Drugs "does not apply to the cultivation of the cannabis plant, when it is cultivated exclusively for industrial purposes (fibre and seed) or horticultural purposes".

We can see that cannabis can be used in two ways, as a controlled drug for medical and scientific purposes or under Article 28.2 for industrial (fibre and seed) or horticultural purposes. Combining Article 28.2 with Article 1(1)(b) the iHemp industry may also have access to the leaves, when not accompanied by the flowering tops.

The case of cannabinoids and in particular of cannabidiol (“CBD”)

"Cannabinoids are various naturally-occurring, biologically active, chemical constituents of the cannabis plant. The most notable cannabinoid is tetrahydrocannabinol (THC), the primary psychoactive compound in cannabis. Cannabidiol is another major, non-psychoactive cannabinoid.

Cannabinoids, as a class of compounds, are not listed in the schedules of the International Drug Control Conventions as such".

What does the EU say

The common agricultural policy regulations already provide strict conditions to prevent illegal use of the hemp plants, Member States cannot prohibit the cultivation of industrial hemp in their territory and deprive the farmers of this opportunity.

Food –

In conformity with the General Food Law quoted above and the judgment of the Court of Justice in Case C-663/18, cannabidiol can be qualified as ‘food’ in so far as it does not have psychotropic effect and provided that also the other conditions of Article 2 of Regulation (EC) No 178/2002 are met. Applications for the authorisation of cannabidiol as a ‘novel food’ may therefore be considered valid, if all other validity conditions are complied with.
Contaminants include inherent plant toxins such as THC. The presence of THC in hemp-derived foods (e.g. hemp seeds, hemp seed flour, hemp seed oil) are subject to the rules regarding contaminants contained in food.
Discussions on the setting of EU maximum levels for delta-9-THC (as a sum of delta-9-THC and delta-9-THCA) in hemp seeds, hemp seed flour and hemp seed oil are ongoing and expected to be finalised in the course of 2021.
Food Supplements - It should be noted that the Member States’ competent authority may determine the classification of a particular product as a medicinal product or as a food and thus possibly as a food supplement. According to established case-law, this is done on a case-by-case basis taking account of all the characteristics of the product, in particular its composition, its pharmacological, immunological or metabolic properties, to the extent to which they can be established in the present state of scientific knowledge, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail.

Animal –

Cannabis-derived products for use as animal feed can be either classified as a feed material or feed additive.
A precondition for the classification within the feed legislation is that the product at stake is not a ‘veterinary medicinal product.
The EU Catalogue of feed materials, includes hemp flour (ground from dried leaves), hemp fibre (by-product from hemp processing), seeds, expeller and oil from Cannabis sativa L. All hemp based feed materials must come from varieties of Cannabis sativa L. with a tetrahydrocannabinol content < 0.2%.

Cosmetics –

Ingredients that are only derived from seeds or leaves (when not accompanied by the flowering or fruiting tops) of cannabis (for example Cannabis sativa seed oil/extract/powder/etc.) should not be prohibited, as they are not covered by the definition of cannabis set out in Article 1(1)(b) of the Single Convention on Narcotic Drugs.
Essential oils from Cannabis, isolated from the resin, should not be used in cosmetics when derived from prohibited substances.
THC is covered by the entry “Cannabis and cannabis resin and extracts and tinctures of cannabis” in Schedule I of the Single Convention on Narcotic Drugs. Therefore, THC is a controlled substance and cannot be used in cosmetics.

Hemp Seeds –

Council Directive 2002/57/EC on the marketing of seed oil and fibre plants, means only officially certified hemp seed may be marketed in the EU for agricultural production, excluding ornamental purposes.
Only varieties of hemp that are distinct, stable, sufficiently uniform and of satisfactory value for cultivation are included in the Common Catalogue of varieties of agricultural plant species.
The EU seed legislation does not lay down any requirements for the THC content of hemp seed as such, this is left to Member States, Except when considering the 0.2% level required to be eligible for direct payments (subsidy).
EU legislation on marketing of seeds is based and aligned with the OECD Seed Schemes on seed moving in international trade. Discussion has started to update the OECD hemp seed certification standards to meet developments in relation to feminised seed breeding and production of cannabidiol.

Resources:

• Council of the European Union (WK 14407 2019 REV 1): https://data.consilium.europa.eu/doc/document/ST-10189-2021-INIT/en/pdf

• Article 28 Commentary on the single convention 1961: Page 312 Cannabis – From Commentary_on_the_single_convention_1961